Post-Testimony Matters
519 linesTHE COURT: Ms. Heard, you can have a seat next to your attorneys. If I could have the attorneys approach.
MR. ROTTENBORN: Your Honor, I will just say, for the record, that is an example of the types of things out there that I know both sides have endured. Someone has been calling my phone nonstop for the last 15 minutes.
MS. BREDEHOFT: Me as well. And Rottenborn is calling me, and I'm calling me. And now I have a message that they've locked my system because of these calls. The excessiveness of these calls. Just in the last 20 minutes.
MR. ROTTENBORN: Right now.
THE COURT: Only brought you up here for motion to strike.
MR. ROTTENBORN: I know.
MR. ROTTENBORN: I know.
MS. BREDEHOFT: Did you want me to rest, though?
MR. ROTTENBORN: After this.
THE COURT: Let me do the motion to strike, and then I can rest, and then I'll release the jury. Can we do it that way?
MR. CHEW: I've reconsidered. I think I've got to go -- F would -- sorry. At the risk of taxing the Court's patience, Mr. Depp renews his motion to strike the counterclaims. And anti-SLAPP, understanding the Court's view of that, for the reasons stated in the papers and in oral argument, which we incorporate by reference, just note, very quickly, — since the last motion to strike, Mr. Depp has confirmed that he never saw any of the three counterclaim statements until he was served with the counterclaims, so that's procedural change. So, we would note that and renew our motion to strike, Your Honor.
THE COURT: All right.
MR. ROTTENBORN: As Your Honor knows, I'll just renew the arguments that I made in opposition. And the only thing that I'll add is there's no requirement that Mr. Depp have actually seen the statements, it's that Mr. Waldman was acting as his agent, and we believe there's sufficient facts for which a jury can determine that.
THE COURT: I'll deny the motion to strike for the reasons the Court previously stated.
MS. VASQUEZ: Thank you, Your Honor.
THE COURT: So maybe after I excuse the jury, we'll take a recess, I guess. So, 12:50?
MS. VASQUEZ: Okay. Thank you, Your Honor.
THE COURT: All right. Your next witness.
MS. BREDEHOFT: Your Honor, the counterclaimant Amber Heard rests.
THE COURT: Allright. Thank you, ma'am. Allright. Ladies and gentlemen, you have heard all the evidence you're going to hear in this matter. What I propose doing is to go ahead and give you the rest of the afternoon off, so you can have a good restful afternoon and evening, and we will do closing arguments tomorrow morning at’9:00 a.m., and then the case will be submitted to you for deliberations. Just to give you a little logistics of how that will go, tomorrow, I won't give you a time limit as far as how long you can deliberate in the afternoon into the evening. I will tell you -- within reason.
THE COURT: I will tell you I do not serve dinner, so keep that in mind. You will not be deliberating on Saturday or Sunday or Monday, because Monday is a holiday. I would like to have you back here Tuesday morning, at least by 9:00. If you want to come earlier, that's up to you. You can decide, as a group, if you want to come earlier than 9:00, but you have to be here at least by 9:00 to resume your deliberations again. And, again, on Tuesday night, and if you have to go to Wednesday or Thursday, that the time -- when you take your breaks, is up to you, as long as you take them together, as far as not having any deliberations unless all of the jurors are in the room at the same time. When you take your lunch is up to you. And then, again, in the evening, within reason, I'll let you go as long as you'd like to go, okay? So, have a good evening and we'll see you tomorrow morning. Do not discuss the case with anybody, don't do any outside research.
THE COURT: Allright. We'll go ahead and take a modified lunch recess, just until 12:50. We'll come back at 12:50. We just have a few jury instructions left we have to do. Make sure we get the verdict form taken care of. I want you to review the laptop we have mocked up, and make sure everybody agrees what's on it. And, also, I want you to look through all your exhibits and make sure we're on the same page. Before you leave, I'll make sure you have copies of the jury instructions in the order that I'm going to read them, and you should be able to prepare for your closing arguments tomorrow, okay? I'll see you at 12:50, then.
COURT BAILIFF: All rise.
COURT BAILIFF: All rise. Please be seated and come to order.
THE COURT: All right. Okay. Let's go ahead and start with jury instructions since they're almost all done, That would be helpful.
MR. CRAWFORD: Okay.
THE COURT: Okay. already have them in a potential order, but let's go ahead and go through them. One thing I'll do for the record first, Plaintiffs 287, which is the same as Defendant's 780T, is a corrupted file that we received from both of you. I guess it's corrupted on both of them, and nobody seems to be able to do anything about it.
MS. VASQUEZ: Right.
THE COURT: So I'think it might just be that it's in evidence; however, it's not going back to the jury because it's corrupted. Does everyone agree with that?
MS. VASQUEZ: Yes, your Honor. Thank you. It's just an Eastern Columbia Building video, so that's fine.
THE COURT: It's corrupt.
MS. BREDEHOFT: Your Honor, I do have more things I need to bring up.
THE COURT: Okay. Do you have more exhibits to give? Good. Let's get Jamie here. All right. So these -- you want to get your list, Jamie, to make sure...
COURT CLERK: Go ahead.
THE COURT: All right. It's Defendant's 393, 821? THR CT ERK: Yeah
COURT CLERK: Yeah.
THE COURT: 857A.
COURT CLERK: Yes.
THE COURT: 883, 1859.
COURT CLERK: Yes.
COURT CLERK: Yes.
THE COURT: Make sure that's nothing; it's the second page of that. 1050.
COURT CLERK: Yes.
THE COURT: This seems to be a longer one. Hold on. And I think that's it, correct? All right. Are you missing any other exhibits?
MS. MEYERS: Your Honor, if] may approach --
THE COURT: Yes, you have something?
MS. MEYERS: We have some from
THE COURT: Let's go ahead and get those. Allright. So these were the two -- well, all right. So we have -- okay. I think this one's theirs. Allright. So I have Plaintiff's Exhibit 1316 and 1317.
COURT CLERK: I still need 1301.
THE COURT: 1301? Does anybody have 1301, Plaintiff's 1301?
COURT CLERK: It was an Instagram post.
THE COURT: An Instagram post?
MS. VASQUEZ: We'll get it, Your Honor.
COURT CLERK: And then 711A and 711B from today.
THE COURT: 711A and 711B, the one without the metadata -- the one with the metadata showing. It was the same pictures, but it showed the metadata.
MS. MEYERS: I believe that was 712A and 712 -- and 713A.
THE COURT: Yes, 7 --
COURT CLERK: I don't have those.
COURT CLERK: Don't have those. 7637
THE COURT: We just don't have them, 712 and 713A.
MS. MEYERS: Understood. Okay.
THE COURT: Can I get them now? Trying to get all the exhibits together right now so we have them all together so we can review them.
COURT CLERK: And then the other one is -- 120D is not in evidence but was on their list as in evidence.
THE COURT: 120D, as in David?
COURT CLERK: Yes.
THE COURT: So 120D was listed as -- you had it as in evidence, but we do not have it in evidence.
MS. VASQUEZ: We'll just confirm, Your Honor.
THE COURT: All right. Is that all the pieces of evidence?
COURT CLERK: Yes.
THE COURT: Excellent. That's good. Okay. So we're very close to getting all that. I just want to -- I don't want to leave May 26, 2022 here until we have every piece of evidence with Jamie and everybody's reviewed it so we don't have to review that tomorrow and waste time with that, okay? All right. So now I think we can do jury instructions, correct? All right. Let me just go over the ones that we had a few issues with. At the first one I'm going to go over is the self-defense. There's two: That would be Number 28 and 29, correct? And I took those under advisement. Do you still have an objection to the self-defense? All right.
THE COURT: So what evidence do we have in trial that would allow to have this -- these two jury instructions?
MR. CRAWFORD: Sure, Your Honor. So I think the evidence -- there's evidence in the record showing that Mr. Waldman was Mr. Depp's agent, that, you know, he was retained in connection with the U.K. litigation and with this litigation. There's evidence that he engaged with third parties in that capacity, that he met with the Daily Mail with Mr. Depp, and that he believed Mr. Depp's version of events. And so I think all of that, I think, is relevant evidence to a self-defense, that Mr. Waldman made those statements in self-defense on behalf of Mr. Depp.
THE COURT: So you're saying if agency _is found?
MR. CRAWFORD: If the agency is found.
MR. ROTTENBORN: We believe they're inappropriate, Your Honor. First of all, we.have . not been able to locate case law, but --
THE COURT: We found one from 18 -- what.was it? 18... , THE LAW CLERK: '87,
MR. ROTTENBORN: That would have been --
MR. ROTTENBORN: And I know I had seen one a while ago --
THE COURT: They said it was a T DEPOS on NUN WH . 7640 reversible error if you didn't give the self-defense one, so I was...
MR. ROTTENBORN: Well, I know we had -- I had taken a look on that a ‘while back. I think -- but I don't have a case cite for you. I think it's a question of Jaw as to whether it applies. So at a minimum, I think we should ‘ figure that out, I guess. But the reason we don't think it should apply is these were statements that are made -- that were made by Mr. Waldman in 2020. I guess it was before Ms. Heard's 12.counterclaim, so if he's saying that he's --
THE COURT: It goes to the op-ed,
MR. ROTTENBORN: Understood. So if he's saying it's -- this lawsuit was a statement in response to the op-ed. Statements that were made a year and a half later by Mr. Waldman, and it doesn't -- again, Your Honor, the keywords are "fairly and reasonably." So obviously both sides are going to argue defamatory implication and what did the op-ed really mean, and did it say these things. But saying, even under their theory, "Two years ago I became a public figure representing domestic abuse," to say that, then, it's fair for Mr. Waldman, a year and a half later, to make public statements that Amber and her friends roughed up the place and spilled a little wine, you know, all the things he said in those statements, that's not fairly and reasonably. Ms. Heard responded fairly and reasonably to Mr. Depp's case through her counterclaim.
MR. ROTTENBORN: The parties can speak to each other in the courtroom here, but saying if someone makes a statement in an op-ed, that then you can go and launch -- do whatever you want for two years, say whatever you want, and obviously there's only three statements that comprise the counterclaim, but as the evidence has shown, it was part of a pattern by Mr. Waldman. It was -- I mean, it's the opposite of proportionate, It's the opposite of fair and reasonable response.
THE COURT: Okay.
MR. ROTTENBORN: Mr. Depp's opportunity for a fair and reasonable response, well, we don't believe.it was either, but he had the opportunity to file a lawsuit in this court.
THE COURT: Right.
MR. ROTTENBORN: To have Mr. Waldman.be 8. his attack dog and to say anything Mr. Waldman then says as his attack dog is somehow fair and reasonable and entitled to the privilege is inappropriate. And I do think that before Your Honor gives it, we need to confirm whether it's a question of law.
THE COURT: Okay.
MR. CRAWFORD: Your Honor, Mr. Rottenborn noted that this lawsuit was a response to the op-ed, but I think there could be multiple statements in response to the op-ed. So I don't -- I think that's not dispositive of anything, and the statements were clearly a direct response to Ms. Heard's allegations on their face, and whether those -- whether that response was fair and reasonable is a jury question.
THE COURT: I don't -- what do you say is the matter of law? The privilege of self-defense is a matter of law?
MR. ROTTENBORN: I think it could be whether it applies.
THE COURT: Okay. Well, I think -- I don't think it's a matter of law. I think it's whether or not if there is any evidence that a jury could find it being protective speech. Not the weight of the evidence, but if there is any evidence. And I don't think it's my role to weigh that evidence as far as how long it was made afterwards.
MR. ROTTENBORN: I think it is, Your Honor. I mean, it can't be the case that any time there's an alleged -- this is why this doesn't come up often, because this just isn't given.
THE COURT: If it were appropriate here, every time there's a defamation case, this would be an instruction, even the person who's the defendant in the case. So all I said, I was responding to something that was said before.
THE COURT: So all your evidence that you say goes to the jury are just the statements, that's why this should be given? That he made the statements, that's the only evidence?
MR. CRAWFORD: Well, I think I --
THE COURT: You gave me evidence of agency, but that's just agency. Do you have any evidence of self-defense, that this was -- that he actually said these statements because of what she said?
MR. CRAWFORD: Well, I think there's circumstantial evidence, at least, that he was -- so it's agency. He's an attorney who was retained in connection with this litigation or the U.K. litigation.
THE COURT: That doesn't automatically give you self-defense though, a privilege of self-defense.
MR. ROTTENBORN: And that's what I'm On NAN PWN
THE COURT: You have to make them -- I You have to make them -- I have to have some evidence that the statements were made in response to the direct accusations of Ms. Heard. I just -- some evidence.
MR. CRAWFORD: On their face, they appear to be a direct response.
THE COURT: Not the statements themselves, but any other evidence? Were the statement fairly rose in response to Ms. Heard's accusation? Did anybody testify that they -- that he made these statements in response to her op-ed?
MR. ROTTENBORN: No.
MR. CRAWFORD: Not that I'm aware of, Your Honor.
THE COURT: All right.
MR. MONIZ: Your Honor, just one small point there. There's no requirement that it be in response to the op-ed in particular. The question for self-defense to apply is simply whether it's made in response to an allegation against Mr. Depp, and Mr. Waldman's evidence is clear, I think, that he was responding to allegations against Mr. Depp and he believed those allegations to be false. There was extensive evidence in the record on that, in fact, I think.
MR. ROTTENBORN: That he was responding to -- so if it's not the op-ed, then we're really in murky ground. If he says, "Well, I was responding to what she said in 2016," that's --
THE COURT: Well, what Mr. Moniz is saying is that you take it as a separate case. You take it as a separate case, their claim and then your counterclaim. So your counterclaim is a separate standalone case, right?
MR. ROTTENBORN: Okay.
THE COURT: So the standalone case doesn't -- your claim doesn't deal with the op-ed, so they're saying, "In defense of your case, that's why this comes in."
MR. ROTTENBORN: But he couldn't have made a - he couldn't have made the statements in defense on our case because these are the bases for our case. So what -- he had to have been -- what was he responding to if it wasn't the op-ed? And if it's not the op-ed, then we're really in murky ground because there's not -- plus, Your Honor, a couple points: There was no -- to your point, there's been no testimony he made these in self-defense to anything, Two, that the defense doesn't apply, and this is --
THE COURT: Well.
MR. ROTTENBORN: It doesn't -- this is in the Haycox case, 1958. It doesn't apply if we prove malice, so it has to be made in good faith and without malice. So it's co -- I can bring the case up, if you want, Your Honor. So if-- the malice inquiry incorporates this. This is the, let's see, 200 Va.
MR. ROTTENBORN: 212, Haycox versus Willcox Dunn, and it looks like on page 8 -- sorry, 231 -- they're discussing a Massachusetts case, and -- that says, "Statements made in an honest endeavor to vindicate one's character or to protect one's interest are usually regarded as qualifiedly privileged, even though they are false, if they are made in good faith and without malice." So the malice inquiry takes care of
THE COURT: And when I say -- just looking at your cases, you're claiming these alleged defamation -- the three we have, allegations, what they're saying in response, that they made them because of something she said that maybe is not the op-ed.
MR. ROTTENBORN: Then there's no evidence of what that is. She responded -- she was sued. She said the op -- she said -- 2016 is when she made her --
THE COURT: Uh-huh.
MR. ROTTENBORN: And 2018, she has the op-ed that have you know a couple words that
MS. HEARD: They're trying to turn into what we've just seen for the last six weeks. And then she responded to the lawsuit.
THE COURT: Okay.
MR. ROTTENBORN: So it can't be the case that by trying to defend yourself in a lawsuit that was brought against you -- if it's not the op-ed, then it's got to be her statements in the lawsuit, that somehow trying to defend yourself through judicially immune statements in a lawsuit entitles someone else to go out and say whatever they want and then try to veil themselves in the privilege.
MR. MONIZ: Counsel for Ms. Heard made a point of making clear that there was extensive allegations about Mr. Depp circulating. They repeatedly brought up the U.K. action, which was, in fact, the context in which I believe these statements were made, based on the dates. It was very close in time to the U.K. action. They brought up the Dan Wootton article. These allegations date back to 2016. These allegations are out there, and there's jury from which -- there's evidence, excuse me -- from which the jury could find that Mr. Waldman was acting in defense of Mr. Depp.
THE COURT: No, acting in defense against Ms. Heard's accusations. So what are , Ms. Heard's accusations that would be defense that are in evidence?
MR. MONIZ: Your Honor, at the outset, there's been extensive evidence of the accusations against Mr. Depp going back to 2016. For example, the Dan Wootton article that they raised in evidence prior to the op-ed, which included the word "wife beater" and was essentially, you know --
THE COURT: But it has to be --
MR. ROTTENBORN: That's not Ms. Heard's statements.
THE COURT: Ms. Heard's statements, right.
MR. MONIZ: I don't believe that's correct. Your Honor. It doesn't have to be -- It doesn't have to be --
THE COURT: Against Ms. Heard's accusations, it is. It is correct.
MR. ROTTENBORN: That would be crazy, Your Honor. They get a jury instruction because he was responding --
THE COURT: I understand.
MR. MONIZ: Again, the number of allegations made by Ms. Heard, it's been very well documented in this case. You have the op-ed, and it doesn't have to be just -- it doesn't have to be any one particular allegation, but you have the op-ed; you have the People magazine article; you have the republication of her statements through the wife beater and the Dan Wootton article; you have the fact that she was giving testimony in the U.K. action about these issues.
THE COURT: Well, then would you agree that actual malice, you don't get the self-defense if there's actual malice in his statements? If the jury finds actual malice, then you don't get --
MR. MONIZ: If the jury finds actual malice --
THE COURT: Then it's not protected speech.
MR. MONIZ: That may obviate the privilege, but that doesn't mean that the privilege is not applicable or valid.
THE COURT: The only way you can find in this case is if there is actual malice. This goes back to their defense, SLAPP defense as well. The only way they find defamatory statements in this case is if there's actual malice, and that's unique to this case; I understand that. But so if they find actual malice, defamatory statements, you don't have protected speech privilege. Ne]
MR. ROTTENBORN: And if there's no actual malice, they win.
THE COURT: Yes, correct. The same with this -- that's why we're not giving a jury instruction on the SLAPP defense, because there's no basis for it.
MR. ROTTENBORN: Right.
MR. MONIZ: I mean, if the instruction
MR. MONIZ: I mean, if the instruction a, is not being given on the understanding that it's essentially moot --
THE COURT: I agree. I think that's what happened with the SLAPP defense as well. We found out - after we went down that legal road, we found out that was moot as well. Okay. So do you want me to deny you or withdraw it? I'll do either one.
MR. MONIZ: If you don't mind denying, Your Honor.
THE COURT: Okay. That's fine. I'll deny. That's Instruction 28 and 29. Okay. Put that in the "Deny” stack. All right. Next one I have is the republication one. Okay. So I see -- both of them -- dueling paragraphs for the republication.
MR. ROTTENBORN: I can speak to this, Your Honor.
THE COURT: Yes, sir. And I understand last time we spoke, that you had -- "You must determine whether any content that was added to May 26, 2022 constitutes a republication." And you just would rather have just the three sentences as yours for republication; is that correct?
MR. CRAWFORD: Correct, Your Honor.
THE COURT: You must find that -- you want to add that into it? I'm not sure. I'm just not sure how I'm reading it.
MR. ROTTENBORN: I think, I think, and 101 don't mean to put words in their-mouth. I think we want the whole thing at the top.
THE COURT: Right.
MR. ROTTENBORN: And they just want the one sentence at the bottom.
THE COURT: Okay.
MR. CRAWFORD: That's correct.
THE COURT: That's correct?
MR. ROTTENBORN: And, Your Honor, we talked about not going backwards. We went over this --
THE COURT: No, I understand.
MR. ROTTENBORN: We went over this
MR. ROTTENBORN: We went over this on Friday. Your Honor said that -- on page 92 of the transcript, “I don't have a problem with the republished jury instruction; J just think it has to be accurate with adding the language," and that language was on page 89. You said, "But you also have to say that adding content to it may establish republication." So that's what we did in the sentence that starts with "Merely linking."
THE COURT: Right.
MR. ROTTENBORN: It did say, "Merely linking to article does not amount to republication." And then we added, directly from the transcript, "But adding content to it may establish republication." So now they've -- now they're going backwards. They just want you to strike the whole thing except the first sentence, and that's different from Your Honor's ruling on Friday and also doesn't fully capture --
THE COURT: No. It doesn't capture. the whole legal argument.
MR. CRAWFORD: If I may just make our argument for the record here, Your Honor --
THE COURT: I thought you did on Friday, but if you want to do it again, that's fine.
MR. CRAWFORD: Okay. Just very quickly, so I think the issue with republication is whether it reaches a new audience, which is what you --
THE COURT: And that's there.
MR. CRAWFORD: Well, it's included in their instruction, and that is basically the full extent of our proposed instruction. And we believe it should be limited to that.
THE COURT: Okay.
MR. CRAWFORD: Lokhova is a case that they've repeatedly cited in support of this republication issue, and that's a case where there was a defamatory New York Times article that was hyperlinked in a more recent New York Times article, and the court said that that's not directed at a new audience; it's the same party tweeting to the same audience, so there's no republication. And that's not the case here where Ms. Heard has retweeted a Washington Post article so that, you know, Ms. Heard's article -- Ms. Heard's audience on Twitter is different than The Washington Post, and so that's --
THE COURT: But if it's -- but if she just retweeted a hyperlink, that's different. But in this context, and that's why I took the motion to.strike under advisement, once I got it, there was more content to it. And that's why I'm putting it in jury instruction because it is accurate that a hyperlink alone is not enough to reach a new audience.
THE COURT: But what I'm willing to -- what I think would also add to it, though, is after "You must determine whether any content that was added constitutes republication," and -- let's see -- I would say, then, "You must determine whether any added content republished the op-ed to a new audience." I could say it that way, or I could say, "but adding content to a linked article may constitute republication. You must determine whether any added content was intended to reach a new audience. If you find it was intended to reach a new audience, it constitutes a republication." I could say it in that -- add that to the end of that paragraph.
MR. CRAWFORD: I think that’s fine if that's the Court's inclination.
THE COURT: Do you have any objection to that?
MR. ROTTENBORN: I'm just -- I'm thinking. Sorry. I'm --
THE COURT: Okay.
MR. ROTTENBORN: A little slow on the uptake.
MS. MEYERS: Can you read it one more time?
MR. ROTTENBORN: Yeah.
THE COURT: Sure. Okay. Let's see. All right. Let me see if I can incorporate it into it. Okay. So "Merely linking to an article does not amount to republication, but adding content to a linked article may constitute republication. You must determine whether any added content was intended to reach a new audience. If you find it was intended to reach a new audience, it constitutes a republication."
MR. ROTTENBORN: I think we would prefer just to say just that first sentence, "Merely linking to an article does not amount to republication, but adding content to a linked article may establish republication."
THE COURT: Well, that's what you already had, isn't it?
MR. ROTTENBORN: No. Because we had the "You must determine whether any content that was added constitutes a republication." I think it would be better to just delete the last two sentences than to add the sentence at the end.
MR. CRAWFORD: Your Honor, I think -- I want to note I don't think that adding content is a requirement for republication, and we found in a number of cases that when somebody repeats a defamatory statement, that they're as liable as the original defamer.
THE COURT: We're not going backwards. So either it's his language or my language. What do you want?
MR. CRAWFORD: I prefer the Court's language.
THE COURT: All right. Then we're going to put my court; that's fine.
MR. ROTTENBORN: Do you want us to do the revisions? Because if you do it, we may just get it one more time from you. We're happy to.
THE COURT: Sammy, can you do it? You gave them to him in Word format?
MR. ROTTENBORN: We did.:
THE COURT: All right. Can you do that? Here.
MR. ROTTENBORN: The other thing I would note is I think the word “retransmitted” in the second line is misspelled.
THE COURT: In the second line? Okay. All right. We'll take care of that. "But adding content" -- just do it. All right. Takes care of that one. Next one is, I think, Instruction FF, defamatory meaning. Consider the publication as a whole. And we have dueling answers here. I have -- defendant just has "op-ed" in it. The plaintiff just has "is plain," which, I mean, it does say that you -- it means you may not seize any word, phrase, or image. So it would appear that -- so it could apply to both of them in that context.
MR. ROTTENBORN: The problem, Your Honor, is that we believe that because the counterclaim statements that the jury will be presented with are redacted, so the statements are in isolation, that there's a risk that as they're phrasing it, the jury may read the phrase, "You must read the statements in context as a whole," to say, "Well, we can't do that. So, therefore, there's no liability." Because it's impossible to read those statements in the context of the whole piece. And so, that's number one. Number two, the op-ed was all Amber's statements. So the whole thing is her --
THE COURT: I understand that.
MR. ROTTENBORN: Words. The counterclaim statements were Mr. Waldman's quotes in another article that we don't believe -- you know, that's not in evidence. There's no point arguing about that other than you just have these one, you know, one or two sentences from Mr. Waldman. So we believe that the jury's going to be confused if we give their instruction and say, "We cannot read it as a whole, so, therefore, we can't, you know, we can't follow the jury instruction."
THE COURT: Okay. I can see your point with that. Yes, sir.
MR. CRAWFORD: I don't think there's anything in the -- I mean, there's a lot of instructions here. I don't think there's anything that would indicate they can't find the liability if they're not able to take statements in their proper context. in the context of the entire proper context, in the context of the entire article. Just thought it would be more appropriately phrased to be mutual, as opposed to obviously applying only to one party.
THE COURT: Well, because yours says, "You must read the statements," which is true, but you also can take the content -- "in the context as a whole," but theirs, you can take that context to the op-ed as a whole, which is accurate, What you could do, if you want, I could keep the op-ed at the top for their claim, and then for your claim, we can -- "In determining whether any of those statements attributed to Mr. Waldman are false and defamatory, you must read the statements," I could keep that in there as a second paragraph. That way you -- that way.
THE COURT: They can't just pull out -- which is -- because it's accurate law also that they can't pull out the word "hoax" and say, "Okay. This whole statement."
MR. CRAWFORD: Agreed.
THE COURT: Okay?
MR. CRAWFORD: That's fine. Thanks.
MR. MONIZ: That's fine in concept. I guess --
THE COURT: In concept?
MR. MONIZ: I would ask, if Your Honor does that, to add a clause saying, "Disregarding any redactions on..."
THE COURT: Well, it says, "the statements themselves." Statements -- in theirs, "You must read the statements in context as a whole."
MR. MONIZ: Right. So I think, I mean, could we say, "In determining whether any of Mr. Waldman's statements," whatever, “are false and defamatory, you must read the text of those statements as a whole"? "The text of those statements in context‘as a whole," or something.
THE COURT: That's kind of -- "You must read the statement in context as a whole," I think that's --
MR. MONIZ: "You must read" -- can we say, "You must read those statements in context as a whole"?
THE COURT: "You must read those statements in context" --
MR. MONIZ: I just don't want them to think that it's impossible for them to --
THE COURT: Any problem with putting “those” instead of "the" --
MR. ROTTENBORN: I don't think we have a problem with that, Your Honor.
THE COURT: Okay. “In determining whether any statements attributed to Mr. Waldman are false and defamatory, you must read those statements in context as whole. This means you may not seize on any one word, phrase, or image or consider only one particular statement, phrase, or passage in isolation." Does that sound correct?
MR. CRAWFORD: Yes.
THE COURT: All right. We'll add that as a second paragraph, keep Sammy busy. All right. That takes care of that. All right. The next one I have is the objections to assertions of privilege. PLANE’ to May 26, 2022
MR. ROTTENBORN: Which? Oh, 32.
THE COURT: I'I'm sorry. It's Depp 32.
MR. ROTTENBORN: Okay.
THE COURT: It's a new instruction.
MR. ROTTENBORN: Oh, yeah. Right, right, right. This is the one at the end. This is the new one.
THE COURT: Do you have any objection?
MR. ROTTENBORN: We do, yeah.
THE COURT: Okay.
MR. ROTTENBORN: The objection, Your Honor, is that the objections made by counsel during the course of trial, we have no problem with something on that. But instructions -- what they're trying to do is to direct the jury how to -- what inference to draw from Mr. Waldman' s instructions not to answer. And --
THE COURT: Well, the only legal inference they can draw, they can't draw any inferences from that.
MR. ROTTENBORN: Exactly-and that's my point is the -- CON NM BW N oO
THE COURT: Well, that's what this says. "You may not draw any inferences from the fact that an objection was made."
MR. ROTTENBORN: Yeah. But saying, "Sometimes attorneys stated-objections during the course of this trial and instructed a witness" -- no.
THE COURT: Right.
MR. ROTTENBORN: "And instructed a witness not to answer a question. Objections and instructions to witnesses are not evidence, and you may not consider them in reaching your verdict, nor are you to draw any" -- So why do they need to be told this? I mean, I think this is -- I think this risks confuse --
THE COURT: Because, well, because, to be fair, the depositions, you wanted to keep in all those objections when usually we take them out, but you wanted to keep them in. So I want to make sure the jury doesn't have any improper inferences from leaving those objections in. You wanted to leave them in to show that "Hey, I asked the questions; they were answered." Fine. But you can't infer from that "Oh, well, they're hiding something, then," or -- it's attorney-client.
MR. ROTTENBORN: Understood. I mean, just like you can't infer when someone takes the Fifth in a criminal case, I get that.
THE COURT: Yeah. Which I would give an instruction for.
MR. ROTTENBORN: Of course. I know. I understand that. But I think that the -- I think that the jury is entitled to draw their own conclusions and -- not inferences. They're not entitled to infer anything from that, but I just think that this risks confusing the jury and getting them to -- getting the jury to think -- if they stand up in closing and say, "They haven't presented any evidence that Mr. Waldman was doing this," then that's using this instruction as a sword. If they get up there and say, "They haven't" -- do you understand what I'm saying? "They haven't proven that Mr. Waldman was acting as his attorney. They haven't proven that Mr.
MR. ROTTENBORN: Waldman was authorized to make the statements," and then they rely on this to hide behind that and we're not allowed -- I'I'm not saying that we will, but I'm not going to say, "You heard him instruct him not to answer, and that’s -- you should infer that he was acting as his agent." I know I'm not going to say that, but if they're going to argue in closing the converse of that, then that's not -- that's prejudicial, and that's -- makes this inappropriate.
THE COURT: All right. Yes, sir.
MR. MONIZ: Your Honor, this is just an accurate statement of law. They chose to.play about 30 minutes of Mr. Waldman being instructed not to answer. Without this instruction, that's prejudicial.
THE COURT: All right.
MR. ROTTENBORN: And it would also be PLANE on NN RWHP to May 26, 2022 prejudicial if they're allowed in closing to say that we haven't presented evidence of anything about the parameters of Mr. Waldman and Depp's relationship. That's --
MR. MONIZ: That doesn't follow from this instruction.
MR. ROTTENBORN: It does.
MR. MONIZ: This instruction is simply saying that the jury is not to draw any interferences from the objections and instructions 1] asserted by counsel. They can consider the evidence. They can consider whether evidence was presented or not. The instructions and objections are irrelevant to that question.
MR. ROTTENBORN: No.
THE COURT: All right. I understand your objections, but it is an accurate phrasing of the law, and I want to make sure that the inferences aren't taken against an attorney-client privilege.
MR. ROTTENBORN: Okay. Can you deny over our objection?
THE COURT: You got it. I mean, no, I can grant it over your objection.
MR. ROTTENBORN: Sorry. I meant grant.
THE COURT: Okay.
MR. ROTTENBORN: Yeah, sorry. Can we get some direction for the arguments that they're allowed to make on closing on that, Your Honor? Because I don't think that's appropriate for them to point to a lack of evidence when they didn't allow Mr. Waldman to testify.
MR. MONIZ: Pointing out the instructions are not evidence. It's not to say -- there's no connection here between these issues, Your Honor.
THE COURT: No, I'm not going to do that. So we're going to do Depp 32. I just need to clean up the top part of it. All right. Over objection, it will be offered. All right. Then I have Instruction JJ, which is the model.
MR. ROTTENBORN: Right.
THE COURT: So why would I not give the model?
MR. ROTTENBORN: We believe you should. T think the only -- looks like the only substantial difference is that they, rather than saying Ms. -- as it's written, it says, “clear and convincing evidence that Mr. Waldman's statements." It's confusing and misleading to say, "If you found by clear and convincing evidence that Mr. Waldman's statements were made
THE COURT: Right. If they find principal or agent, I mean, that would be the only basis for it.
MR. ROTTENBORN: Right.
MR. MONIZ: First of all, Your Honor, if liability is entirely vicarious, which I think is the position of the counterclaim plaintiff in this case, I don't think there's any evidence of direct liability. If liability is entirely vicarious, then I don't think there's a basis for on NWA PWN vicarious, then I don't think there's a basis for a punitive damages instruction at all against Mr. Depp because vicarious liability generally doesn't result in punitive damages as to the principal. Punitive damages are only applied where the person against which punitive damages are being assessed actually engaged in conduct, that it was wrongful. And that's not the way they've pled and sought to prove their case. I think that's the first --
THE COURT: So their crux? Okay. So they're saying you're not entitled to a punitive damages instruction.
MR. ROTTENBORN: Well, I disagree with that. There's no case law that they've cited in here on that. And I think that's going backwards, that that's an argument that we've --
THE COURT: Okay.
MR. ROTTENBORN: Your Honor, and I just think -- "that Mr. Waldman's statements were made
MR. ROTTENBORN: 63672 to May 26, 2022 knowledge." I'd be okay with that.
THE COURT: Is that okay?
MR. MONIZ: I think we would retain our objection on that on the basis previously § asserted, Your Honor. And then what's the other? I'I'm sorry. Could I have counsel's language again one more time.
THE COURT: Sure.
MR. ROTTENBORN: Yeah. "If you have found by clear and convincing evidence that Mr. Waldman, while acting as an agent for Mr. Depp, made the statements with knowledge that they were false or so recklessly" -- I think it’s 14"so reckless," so there's a typo there. Sorry. We'd be okay with that,
MR. MONIZ: Yeah. I mean, we do maintain the same objection, Your Honor, that principal liability -- and we do have case law for that proposition.
THE COURT: Overrule that objection. We'll -go ahead and -- can you type that up real mick far me —-
MR. ROTTENBORN: Sure.
THE COURT: And get that to me? If you email it to Sammy, we can print it out.
MR. ROTTENBORN: Yep.
THE COURT: Okay. You're in charge of that one. All right. That's fine. I think that was it, correct, as far
MR. ROTTENBORN: I think it was, other than the verdict form.
THE COURT: Perfect. Let's go to the verdict form. We'll get this -- do you have the other ones for me yet, Sammy? You still working on them?
MR. MONIZ: Typing it up.
THE COURT: If you can, print those All right. Let me get the verdict form. AJ] right. I think for the verdict form, it was just the first page; am! correct with that?
MR. ROTTENBORN: And the punitive damages.
THE COURT: Well, the punitive damages you don't have a response, right? Do we have...
MR. ROTTENBORN: I think it was just that there was just a comment that we got from them that we changed.
THE COURT: All right. I think it was in 1A. The statement was about Mr. Depp. I think the plaintiff wanted that out because we already had the statement has a defamatory implication about Mr. Depp, and the defamatory implication was designed and intended by Ms. Heard, which I think is...
MR. ROTTENBORN: If you look at the -- it needs to track the finding instruction, which is jury instruction C on page 4 of the jury instructions.
THE COURT: Okay.
MR. ROTTENBORN: And that's what the verdict form does.
THE COURT: Okay. Let me take a look. And that was C? Okay.
MR. ROTTENBORN: Yeah.
THE COURT: Okay.
MR. ROTTENBORN: So the way it's been written tracks the finding instruction.
THE COURT: Al right. Tracks the finding instruction.
MR. CRAWFORD: Yeah. We don't have a strong objection here, Your Honor. I thought it was maybe cumulative, but...
THE COURT: It does match the finding instruction, which would be clearer to the jury. We'll keep that in.
MR. CRAWFORD: That's fine.
THE COURT: And then the punitive?
MR. ROTTENBORN: And so, that would carry through to all of that.
THE COURT: Oh, you're through all
MR. CRAWFORD: We'll withdraw that, Your Honor. Their proposed language is fine.
THE COURT: All right. So the verdict forms as written, are the verdict forms good to PLANE'7676 to May 26, 2022 go, correct?
MR. ROTTENBORN: No. Well, I'I'm sorry. Did they -- did you withdraw the -- did they withdraw the punitive damages? Okay. Fine.
THE COURT: So we're good with the verdict forms, what I have as the verdict forms, correct?
MR. MONIZ: Your Honor, I think yes, but I do just want to make sure. I understand we don't go back, but I just want to make sure that -- for the record, we do maintain that the verdict form should state that the defamatory implication was false and not that the statement was false. Because under the Pendleton case, that can -- a facially true statement can still have a false defamatory implication.
THE COURT: And we had that on the record on Friday, but thanks for putting it in again. It's fine. All right. So the verdict forms are good. So we'll keep the verdict forms. Did you print out the other?
THE LAW CLERK: I didn't.
THE COURT: No, you can print it out. That's how. Yeah. So which ones are we missing, then? We're missing the jury instructions. You're working on two of them, right?
THE LAW CLERK: I have 32 and FF, right.
THE COURT: 32 and FF? And you have one jury instruction for me, right?
MR. ROTTENBORN: Yes. They're editing it right now. It's JJ.
THE COURT: Okay. JJ is coming in, And did you do the other one yet, or no? Could you guys do, Michelle, or -- could you -- on Depp 32, could you take off 17"disputed" and send that to us, too?
MR. ROTTENBORN: Yes.
THE COURT: Thank you. And that would just leave us -- we'll get those two printed out, and then I'll tell you the order that I'm going to do them. While I'm doing that, I do have the laptop if both sides would like to look at the jury evidence on these. They're going to -- let's stay up here at the bench, but all we did was we put two files on here. There's no password for it as soon as you open it up -- it doesn't have any Internet, and there's just two files. One's Plaintiff; one's Defendant. They just click on those two, and then they can watch all the audio and the video, okay? So if you want to, take a look and make sure. It's been downloaded to everything that we put on our website, which is all the evidence.
THE COURT: We didn't receive any new evidence today for audio or video files, so it's everything on there. But if you want to take.a look to make 17'sure that everything is. there, you can do that. Also all the tangible exhibits, Jamie will have, except we need to get those others ones so we can -- oh, you have them? Perfect.
MS. MEYERS: Yes. If I may approach, I have 1201 CaN PW WH have 1301.
THE COURT: Okay.
MS. MEYERS: And then, Your Honor, I just would like some clarification.
THE COURT: Sure.
MS. MEYERS: I understand that’ _ Exhibit -- Defendant's Exhibit 712 and Defendant's Exhibit 713 were initially moved into evidence in redacted format.
THE COURT: Correct.
MS. MEYERS: Today we offered them and put them in in unredacted form, so that's the --
THE COURT: 712A and --
MS. MEYERS: And then.--
THE COURT: 713A?
MS. MEYERS: 713A.
THE COURT: Yeah.
MS. MEYERS: I believe Your Honor should already have those in unredacted form, I believe. That's how they were provided to you.
THE COURT: Oh, they're in the binders down here?
MS. MEYERS: I believe so. I will -- 500 to. 1) May 26, 2022 THE LAW CLERK: They should be. I will check.
MS. MEYERS: Yes. So I believe you should actually have those in unredacted form from defendant's.
THE COURT: All right. Defendant's... We have.a few binders down here. Hold on.
MS. MEYERS: Yes. I think they would be in the binders; that's correct.
COURT CLERK: 711?
THE COURT: 712 and 713. All right. We'll take a look at those.
MR. NADELHAFT: Your Honor.
THE COURT: Yes?
MR. NADELHAFT: So I can give you a copy. I wasn't able -- I was going to make a proffer for the one -- for a whole bunch that --
THE COURT: Do you want to go ahead and make a proffer now?
MR. NADELHAFT: Yeah. But it included 99719 and 7132 ea I can give you copies of that. 22712 and 713, so I can give you copies of that.
THE COURT: Oh, you can? That would make Jamie happy. She's just down here, digging through binders.
MR. NADELHAFT: Yeah. Well, I can give ‘you copies of that right now.
THE COURT: Okay. Perfect. All right. Now we have those in evidence. Okay. All right. So are we missing any more from over here? Or did - you find about the one you thought was in evidence?
MS. MEYERS: So, Your Honor, Defendant -- I believe -- oh, excuse me. It's Plaintiffs Exhibit 120D, I believe, actually Sammy and I had a number of back-and-forths about this exhibit. I believe that defendant's counsel provided a redacted version of that exhibit --
MR. NADELHAFT: Yeah.
MS. MEYERS: To the court, but based off our reading of the transcript, that exhibit was not actually offered into evidence.
THE COURT: Okay. So it's not evidence, then? Transcript of Ju
MR. NADELHAFT: It's not in evidence, Your Honor. I thought -- and I believe I emailed it to Sammy last week.
THE COURT: You've got to. take "disputed" off.
MR. NADELHAFT: But if you don't have it, I'm happy to bring it.tomorrow. But it's not in evidence. So it wouldn't go back to the jury anyway.
THE COURT: Okay. All right. So I just want to make sure because it was checked off on somebody's list that it was in evidence, and I just wanted to make sure. I don't know.
MR. NADELHAFT: I think it is not.
THE COURT: But it's not. We're good.
MS. MEYERS: And then I heard that Exhibit 711A and B, I'm not sure --
THE COURT: Yeah. I think it's 712 and 713.
MS. MEYERS: Okay.
THE COURT: So we're good.
MS. MEYERS: All right.
MS. MEYERS: All right.
THE COURT: So, Jamie, are we missing anything else? Sammy, did you print out the ones that they sent you too? The email. Did you email Sammy the --
MCCAFFERTY: He's just — double-checking right now.
THE COURT: Oh, okay. Okay. We'll get that in a second. Let me just put these in order. I've got that one without a dispute on it. You want to go ahead and print that out? Just print two copies so we can share them. The one Sammy printed off on republication, I'm going to give you copies to make sure they're right, okay?
MCCAFFERTY: Yes. And you should receive in your email soon FF, JJ, 32.
THE COURT: Okay. So if you could, print those out too, Sammy. Let's print those out. So you're sending FF also?
MCCAFFERTY: Uh-huh. May 26, 2022
THE COURT: Okay. Did you take the "disputed" off the top?
MCCAFFERTY: I did.
THE COURT: Thank you. Allright. Let me just get this printed. Could somebody -- could -you print me out another one of AA. There's'a mark on this one. Or at least email it to -- just email that one to Sammy. Something-in the paper just doesn't look right.
MR. ROTTENBORN: Your Honor, will we be getting just a paper, a paper printout, or an electronic copy from the Court?
THE COURT: AIT have is a paper printout.
MR. ROTTENBORN: Okay. So we can scan it?
THE COURT: You can scan it. If you want to do it electronic, that's fine.
MR. ROTTENBORN: And then will these be posted on the --
THE COURT: Not until after I give. Not until after I give them.
MR. ROTTENBORN: Not until after: Okay. Wasn't sure. And they're read before closing?
THE COURT: They're read before closings. All right., Thank you. If you want to, take a look at that instruction and make sure it looks okay before I add it to the stack? You have the actual malice On AHN PWN ©
MR. ROTTENBORN: Yes.
THE COURT: Okay. Oh, never mind. Jamie already gave it to me. Sorry, Jamie.
MR. ROTTENBORN: Your Honor, was it --
THE COURT: Is there --
MR. ROTTENBORN: No, I think it's fine. Does the Court want to leave the, you know, "Heard 19C Depp 7" sort of things in there?
THE COURT: No.
MR. ROTTENBORN: Because, like, otherwise we could --
THE COURT: Heard C -- oh, no. Well, the numbers at the top can stay. I just don't want it to say "disputed."
MR. ROTTENBORN: I don't think any of them say "disputed."
THE COURT: Okay. No. The numbers, I ‘ tell the jury to disregard the numbers in the — heading.
MR. ROTTENBORN: Okay. That's fine.
THE COURT: That's better for the record if we keep it that way. Okay. So any -- oh, you're still reading the publication. Okay.
MR. ROTTENBORN: Your Honor, can we get -- sorry to bother Sammy. Can we get one more printout of the actual malice instruction.
THE COURT: Sure.
MR. ROTTENBORN: Thank you.
THE COURT: Jamie, can we get another actual malice.
MR. ROTTENBORN: AA.
THE COURT: AIl right. Any objection All right. Any objection . 7689 to the republication, then, as typed?
MR. CRAWFORD: No, Your Honor.
THE COURT: Okay. We'll put that in there as well.
MR. ROTTENBORN: Hold on.
THE COURT: Is there.a typo?
MR. ROTTENBORN: Nope, It's okay.
THE COURT: It's okay?
MR. ROTTENBORN: Yep.
THE COURT: All right.
MS. VASQUEZ: Your Honor, I just have a very quick question. regarding closing arguments, if we may.
THE COURT: Okay. Sure.
MS. VASQUEZ: Does the Court have any objection to us playing very small clips of --
THE COURT: As long as they're in evidence, you can play anything, show any picture.
MS. VASQUEZ: Well, that's my question.
THE COURT: Okay.
MS. VASQUEZ: So obviously depositions were by video, many witnesses, especially May 26, 2022 Ms. Heard. Do you have any objection to us playing video depositions, portions of --
THE COURT: If it's not in evidence, it doesn't get --
MS. VASQUEZ: No, of course. Just what's in evidence.
THE COURT: There's no video depositions in evidence.
MS. VASQUEZ: Oh, I see what you mean. Okay. So --
THE COURT: The only thing that can be played to them is what is in evidence.
MS. VASQUEZ: But they're testimony. It's witness testimony.
THE COURT: Well, yeah. But that would be like -- but depositions are witness testimony that you have during trial. That doesn't go back. to the jury as evidence. And deposition -- video depositions are the same. That would give more weight to video depositions than witness testimony.
MS. VASQUEZ: Well. so my question is Well, so my question is it's a follow-up question to that. Obviously this trial was televised, so there are videos of witnesses testifying, So -- ‘
THE COURT: No. None of that comes in.
MS. VASQUEZ: Okay.
THE COURT: No. The four walls of this courtroom is what the jury decides the case in, period.
MS. VASQUEZ: Okay.
MS. BREDEHOFT: And just so we don't have a problem tomorrow also, we can't put in front of the jury written deposition or trial testimony?
THE COURT: That's correct. That's correct: Only things that are in evidence.
MS. VASQUEZ: Understood, Your Honor.
MS. BREDEHOFT: But you can show pictures in evidence. You can show video that's in evidence.
MS. VASQUEZ: Or audio that's in evidence?
THE COURT: Or audio that's in evidence. All that's fair game.
MR. ROTTENBORN: No display of written transcripts either.
THE COURT: No written transcripts. Just only items in evidence. And --
MR. ROTTENBORN: No, I was -- I'm on the same page.
THE COURT: Okay. I just want to make sure.
MS. VASQUEZ: Thank you, Your Honor, for the clarification.
THE COURT: And you have two hours, right? Two hours each, and you -- two people over here and two people over there, is that what's ; going to happen?
MS. BREDEHOFT: Yes, Your Honor. We're going to split our closing, and then only one of us will do the rebuttal.
THE COURT: Okay. And that has to just be on the rebuttal case, correct?
MS. BREDEHOFT: Right.
THE COURT: We had that down, right?
THE COURT: We had that down, right? aL, 7. We've gone through that a few times.
MR. ROTTENBORN: Understood.
THE COURT: Mr. Chew, do you have something on that?
THE COURT: Correct.
THE COURT: Right. They do their defense to your claim, and also they do their offense to their claim.
THE COURT: Plaintiff gets to do their defense to their claim and their rebuttal.
THE COURT: Rebuttal to their counterclaim only.
MR. CHEW: To the counterclaim. And so- it goes one, two, one, two, and plaintiff gets two May 26, 2022 hours. They get two hours,
THE COURT: Total.
THE COURT: That doesn't matter to me, no.
THE COURT: As long as your time is just two hours, it doesn't matter how much anybody does.
THE COURT: Okay?
MR. ROTTENBORN: If you wanted to shorten that to about 15 minutes apiece --
THE COURT: I would want to shorten it to two minutes, but, you know, that's not my take. I gave you two hour. I thought that was good.
MS. BREDEHOFT: We got pretty efficient at the end of it.
THE COURT: Yeah. That's amazing how 2? that happens, yeah. It's kind of like the physics that happens, yeah. It's kind of like the physics of, you know, you make a circle, and then people will fill that circle. That's how that happens. I made a circle. Okay. So let me just go ahead and read into the record the order that I'm going to give the jury instructions. I'll also read into the record the instructions that were denied, and I will read the instructions that were withdrawn, just so we have a complete record, okay? Allright. Here we go.
THE COURT: For the jury instructions, I'll read them in the following order: Number Heard I; Number 3; Number 10; 1; B, as in "boy"; C, as in "Charlie"; D, as in "delta"; E, as in "echo"; F; G; H; 12; 13; Y; FF; AA; BB; DD, that's "David David," DD; TT; CCC; 20; Z, as in "zebra"; T; U; V, as in "Victor"; K; L; 5; 6; 7; 32; 8; 9; 16; II; 30; KK; and JJ. All right. Those are the ones that will be read to the jury, in that order. Okay. The ones that were denied was 2] instruction 22; 23; 24; CC; NN, both as in "Nancy"; OO; PP; RR; SS, S as in "Sam," SS; 28; and 29 are the ones that were denied. The ones that were withdrawn, for the record, was instruction A; 2; 4; 11; 14; 15; 17; 19; 21; 25; 26; 27; X, as in "X-ray"; 31; W; EE; GG; QQ; DDD; Q; 18; J; M; N; O; P; R; 8; HH; LL; UU; VV; WW; XX; YY; ZZ; AAA; and BBB. Allright. So we will -- I will get you copies now. I'll get you hard copies of the jury instructions I'm going to read, in that order, so you'll have copies when you leave here, okay? And I'll give you copies of the verdict form as well, and you can have those while you prepare for your closing arguments.
THE COURT: Other than that, if you could, come up to see Jamie after I leave the bench, just to make sure you go through the exhibits and everybody okays the exhibits so we don't have to do that tomorrow. And also if you can, have a look at the laptop with Sammy, just to make sure all your exhibits are there that are going to go back to the jury, okay?
MR. ROTTENBORN: Your Honor one quick wen AUN WN Your Honor, one quick ‘ 7697 question about closing --
THE COURT: Okay.
MR. ROTTENBORN: To make sure we don't have any issues tomorrow.
THE COURT: Sure.
MR. ROTTENBORN: Understand the jury only sees evidence --
THE COURT: Yes.
MR. ROTTENBORN: That they've seen in the trial. If there's -- if that evidence is displayed through, like, a PowerPoint or whatever, are -- like, are headings allowed? Or do you not want the jury to see any written texts or anything other than just evidence?
THE COURT: I mean, I've seen PowerPoints in cases before, in med mals where they have their -- other items up there, but I think in this particular case, I'd rather just have no writing and just have your arguments orally.
MR. ROTTENBORN: That's fine. I wanted to -- yeah -- make sure that there wasn't -- to . May 26, 2022
THE COURT: Just try to keep it clean.
MR. ROTTENBORN: More paraphrasing of witnesses or anything like that.
THE COURT: Okay. That sounds fine with everybody. Just does anybody --
MR. ROTTENBORN: That's fine with me.
THE COURT: That's a good question though. Are you going to have a PowerPoint?
MR. ROTTENBORN: Probably, with evidence.
THE COURT: Okay. Did you want me to have the big screen up as well for the PowerPoint?
MR. ROTTENBORN: I think so. Yeah. I think that would be great.
THE COURT: Okay.
MS. VASQUEZ: Thank you, Your Honor. Yes.
THE COURT: Okay. Good. We'll do that as well.
MR. ROTTENBORN: And starts at 9?
THE COURT: Starts at 9. Closings start at 9.
MS. BREDEHOFT: Your Honor, Mr. Nadelhaft has a proffer still on some things.
THE COURT: Yeah.
MS. BREDEHOFT: Do you want to do that now, before we --
THE COURT: Sure. Everybody wants to hear your proffer.
MS. VASQUEZ: Also Ms. Meyers' at the end of Mr. Nadelhaft's.
THE COURT: All right. They have one 1] too. So go ahead.
MR. NADELHAFT: This will be shorter --
THE COURT: If you could, just get to the microphone so I can hear you better. Or the court reporter can hear you better.
MR. NADELHAFT: This will be shorter than the other day.
THE COURT: Oh, good.
MR. NADELHAFT: Okay. This is for metadata. May 16th and May 17, 2022, the defendant attempted to introduce into evidence photographs from May 21st, 2016, that included metadata on the photographs. Ms. Heard testified that the metadata was included on the photos by pressing a button on her phone. The metadata demonstrated the pictures were taken on December 21st, 2016, along with the times they were taken. The exhibits were Defendant's Exhibits 700 through 726 and our Exhibits A through AA of the proffer. Tabs N and O of the proffer are now blank, as Defendant's 712 and 713 were admitted with the metadata on May 26th, 2022. Mr.
MR. NADELHAFT: Depp objected to the metadata on the documents, stating that the metadata was hearsay and there was no foundation for the hearsay. The Court sustained the objection on the ground that the metadata was hearsay and that there was no foundation and admitted the exhibits but redacted the metadata. And then separately, we have a proffer for Stephen Deuters. On May 20th, 2022, Ms. Heard moved to designate certain portions of the deposition testimony for trial of Stephen Deuters, who was Mr. Depp's personal assistant. Mr. Deuters who was Mr. Depp's personal assistant, Mr. Deuters testified that he was on the Boston flight and sat in a seat facing Ms. Heard and Mr. Depp. He further testified that the day after the flight, Mr. Depp told him he wanted to "smooth whatever issue" existed with Ms. Heard. Mr. Depp asked Mr. Deuters to "write a text" to Ms. Heard and to say "whatever she needs to hear." Mr. Deuters then sent a text message to Ms. Heard about Mr. Depp stating, "When I told him he kicked you, he cried." The testimony is contained in Exhibit A and Mr. Deuters' deposition. Ms.
MR. NADELHAFT: Heard moved to admit the text message into evidence arguing it was not hearsay under Rule 2:803 which provides for the admission of statements of a party opponent and its agents. Ms. Heard argued Mr. Deuters was acting as Mr. Depp's agent when he sent the text, and the text message was therefore not hearsay. The text message is Exhibit B to the proffer. Mr. Depp objected to the text message as hearsay, arguing that although Mr. Deuters was Mr. Depp's employee, sending text messages to Ms. Heard was not within the scope of the employment, The Court denied the motion to admit the text message in testimony, finding that Mr. Deuters was not acting as Mr. Depp's agent when he sent the text message. And I'll provide -- I have copies to provide.
THE COURT: All right. Fine. We can add it to the list. We have a box for you. All ll right. Add that.
MR. NADELHAFT: Oh, sorry, Your Honor.
THE COURT: I think he has more.
MR. NADELHAFT: And this is the other one.
THE COURT: All right. We'll make them part of the record. Thank you, sir. All right. Yes, Ms. Meyers.
MS. MEYERS: Thank you, Your Honor. On May 25th, 2022, plaintiff intended to call Dr. Kim Collins as an expert witness in forensic pathology. Defendants objected on the basis that Dr. Collins had not been designated as a defensive witness and was designated only to rebut Dr. Jordan, which was defendant's forensic pathologist who had not been put up at this trial. Dr. Collins intended to testify as to whether Ms. Heard's descriptions of violence and injuries allegedly sustained by Mr. Depp were consistent with the photographic evidence at issue in this trial.
MS. MEYERS: She also, for incidents where there was no photographic evidence, she would have testified as to what injuries she would have expected to see based off of the violence Ms. Heard testify to. And finally, she would have testified as to her opinion as to the cause of -- or as to Mr. Depp's finger injury and what she observed consistent -- which was similar to what Dr. Gilbert testified to today.
THE COURT: Allright. Thank you. Any other proffers? Okay. All right. So just don't leave here until you check the laptop and you check all your evidence and make sure we get your T DEPOS SAIN M DPW HY - 1. check box on that and everybody's happy with it, okay? Anything else for the Court?
MS. VASQUEZ: No. Thank you.
THE COURT: Really?
MS. MEYERS: Thank you very much.
THE COURT: Thank you. Okay.
MR. CRAWFORD: Thank you, Your Honor.
THE COURT: All right. We'll see you in the morning.
COURT BAILIFF: All rise.
COURT BAILIFF: IN WITNESS WHEREOF, I have hereunto set my hand and affixed my notarial seal this 27th day of May, 2022. My Commission Expires: September 30, 2024 NOTARY PUBLIC IN AND FOR THE COMMONWEALTH OF VIRGINIA